Inexplicably, whenever the newest, shiniest hi-tech toy is announced, nobody seems to mention one itty, bitty detail in its programming.  That is complies with the 1994 Communications Assistance to Law Enforcement Act.  You remember, the law that requires communications providers to make sure that whatever they come out with can be easily intercepted by the government.  For your own protection, of course.

It appears that our communications giants, unfortunately, have not always been wonderful citizens of the nation.  With the competition for newiest, cooliest, shiniest toys, they big boys haven’t paid as much attention to the FBI as they have to Steve Jobs.  Want to bet that Jobs has a red telephone on his desk on his belt clip direct to Washington? 

From the New York Times :

The officials say tougher legislation is needed because some telecommunications companies in recent years have begun new services and made system upgrades that create technical obstacles to surveillance. They want to increase legal incentives and penalties aimed at pushing carriers like Verizon, AT&T, and Comcast to ensure that any network changes will not disrupt their ability to conduct wiretaps.

It’s almost as if they’re a part of a vast criminal conspiracy designed to prevent the government from saving us from the bad guys.  They must be punished.

Albert Gidari Jr., a lawyer who represents telecommunications firms, said corporations were likely to object to increased government intervention in the design or launch of services. Such a change, he said, could have major repercussions for industry innovation, costs and competitiveness.

“The government’s answer is ‘don’t deploy the new services — wait until the government catches up,’ ” Mr. Gidari said. “But that’s not how it works. Too many services develop too quickly, and there are just too many players in this now.”

What we have here are cross purposes.  Communications companies need to come out with something new every four months to keep us from falling asleep, while the government needs them to slow it down while they figure out how to collect every garbled word that crosses the digital divide. 

The users of these shiny new toys, of course, neither consider nor care about the government’s concern.  The chances of our being blown up by terrorists aren’t nearly as great as being viewed as Luddites by our comrades.  What?  Is that last month’s 3G phone you’re using?  Hah, you dinosaur.

The push to expand the 1994 law is the latest example of a dilemma over how to balance Internet freedom with security needs in an era of rapidly evolving — and globalized — technology. The issue has added importance because the surveillance technologies developed by the United States to hunt for terrorists and drug traffickers can be also used by repressive regimes to hunt for political dissidents.

There is nothing involved in this problem that demonstrates a concern for internet freedom.  The point of this law is that advancement of technology not outpace the ability of the government to hear our every word at will.  The concept of privacy has long been abandoned, both by the government’s doing as well as our own.  The need to intercept our emails is relative to the government’s taking a quick look at our Facebook page, where we spell out in ugly detail all the nasty things we’re doing so that we can share with our friends.

Twitter, of course, is an open book to begin with.  It’s brought voyeurism to a new depth, listening in on conversations between people you don’t know discussing whatever insipid thing they feel is crucial to be shared.  No need to worry about intercepts here; we’ve given it up on a platter.

But to the extent that there remains any impediments to the government’s immediate access, it’s unacceptable.

Under current law, if a carrier meets the industry-set standard for compliance — providing the content of a call or e-mail, along with identifying information like its recipient, time and location — it achieves “safe harbor” and cannot be fined. If the company fails to meet the standard, it can be fined by a judge or the Federal Communication Commission.

In those rare instances where we haven’t offered up our deepest thoughts to the government willingly, there’s a law to make sure that they always have their ear to the door.  As we move forward to the next shiny toy, the next technological marvel, the next game-changer, the primary concern of the United States government is that there remains a special button for them on our touch screen.  You won’t see it, but it’s there.

Years ago, the Supreme Court in Katz v. United States , the Supreme Court held that the predicate for the assertion of Fourth Amendment rights was that we had a “reasonable expectation of privacy.”  If that expectation is tested by the technological prowess to intercept our every online communication, then it is not only unreasonable but absurd. 

Enjoy your Droid.  Enjoy your iPhone.  For you old-timers, enjoy your Blackberry.  And don’t worry about the government intercepting your communications.  They would never intercept our communications.  They are only interested in the bad guys, and we’re certainly not the bad guys.  Nosireebob.  Nothing to fear here.

Marketing philosopher Seth Godin wrote a book called All Marketers Are Liars, The Publisher’s Weekly review of the book sums it up this way:

Advertising’s fundamental theorem-that perception trumps reality-informs this dubious marketing primer. Journalist and marketing guru Godin, . . . contends that, in an age when consumers are motivated by irrational wants instead of objective needs and “there is almost no connection between what is actually there and what we believe,” presenting stolid factual information about a product is a losing strategy. Instead, marketers should tell “great stories” about their products that pander to consumers’ self-regard and worldview. Examples include expensive wine glasses that purport to improve the taste of wine, despite scientific proof to the contrary; Baby Einstein videotapes that are “useless for babies but…satisfy a real desire for their parents”; and organic marketing schemes, which amount to “telling ourselves a complex lie about food, the environment and the safety of our families.” Because consumers prefer fantasy to the truth, the marketer’s duty is to be “authentic” rather than honest, to “live the lie, fully and completely” so that “all the details line up”-that is, to make their falsehoods convincing rather than transparent.

Via Larry Bodine, the American Bar Association announced that it has named Chris Gloede as its first Chief Marketing Officer.  And you thought the ABA was going to be the moral compass that kept lawyers from veering off the edge of the earth into the abyss.

The ABA has been bleeding 2,000 and 4,000 members per year since 2008, when membership stood at 408,000. ABA membership isn’t growing at the same rate as the profession, said former ABA President Carolyn Lamm, a partner in the Washington office of White & Case. The association doesn’t even represent half of all U.S. lawyers anymore, she said.

Was it not cool enough, sexy enough, cutting edgy enough?  Well, no, it wasn’t.  It wasn’t anything like that, despite the ABA Journal’s laughable play at being Rebellious.  But then, nobody ever thought the ABA would, or should, be cool.  For a very long time, lawyers have asked for only a few things of their bar associations, all of which are tied up in their utility to the profession.  They do nothing to keep the profession honest and viable. 

From solos to biglaw, business has been bad, no awful, along with our honor, integrity and prestige.  Law students want their money back, and desperate lawyers will promote their being a bully if it gets them a paying client.  The race to the bottom was destined to happen unless someone, something, stopped the lowest and worst of the profession from doing what came naturally. 

An entire industry, manned largely by people who neither know nor care what it means to be a professional, has grown like a fungus to offer simplistic, bordering on idiotic, advice to lawyers on how to get rich.  And the lawyers, proving conclusively that they are venal and desperate as the public believes them to be, have become sheep in the hands of these marketers, turning a learned profession into the oldest profession.

Granted, the ABA maintained its reputation as bastion of the stodgy, self-satisfied, upper crusty gang.  Smirking at the lowly lawyer whose firm lacked a thousand secretaries, the mandarins of The Bar patted themselves on the back for having the last place on earth where spats were fashionable.  And they can’t imagine why members were leaving in droves.

The reason lawyers are leaving is the same reason lawyers haven’t joined for years, even decades.  The American Bar Association isn’t relevant.  The American Bar Association does not matter to the practice of law.   Nobody wears spats anymore.

It’s not that we couldn’t use a bar association to guide and help the legal profession to move forward.  In fact, lawyers are in desperate need of help, from the pursuit of excellence to the maintenance of honor and integrity.  Perhaps we’ve never needed it more.  But as this announcement shows, the ABA won’t be the entity to do so.

Instead, the ABA has hired a Chief Marketing Officer.  As lawyers leap off the curb, diving headlong into the gutter, the ABA wants to be right there when we go “splat.” 

The Culture of Lawyers and the legal system face systemic challenges in the digital age the likes of which we’ve never seen.  Business is down.  Respect is nearly non-existent.  Platitudes and doubletalk substitute for professionalism, and excellence is a forgotten commodity in the age of blogs and websites directed toward the grand lie, that we are all the most wonderful lawyers ever because Google says so.

The choice was leadership or salesmanship.  The ABA has made its choice. 

Anybody want to buy a Legal Rebel skateboard? It dices. It slices. Is that it for our future?

There’s a diminutive young woman whose fashion sense is bad, but her conduct worse.  Despite her funny-sounding nickname, she apparently isn’t always a barrel of laughs, resulting in her arrest in Seaside Heights, New Jersey.  But don’t fret for poor Snooki, as 22 year old Nicole Polizzi is called.  She’s cut a deal.

The pint-sized “Jersey Shore” star, sentenced to community service after pleading guilty to disturbing beachgoers this summer, has figured out how to finish fulfilling her punishment.

According to E! Online, she’ll sign autographs this weekend at the Seaside Heights Community Center and donate the proceeds.

“If people want an autograph, they will make a $10 contribution to Donations of Love,” Polizzi’s lawyer, Raymond Raya, told the site. “Nicole will also be making an additional contribution to the organization.”

Don’t jump to the obvious conclusion that Snooki, by dint of her celebrity, is getting off easy.

“It can be quite painful to sign autographs for three hours,” Raya told E!.

Tell me about it.

The Daily News article isn’t quite fair, however, in that Snooki was also required to spend the day cleaning the Seaside Heights police station and the animal cages at the Popcorn Park Zoo.  Whether this is a better gig than picking of roadside trash is a matter for some debate, but it still falls within the parameters of a typical sentence, appropriate to the legitimate purposes of a conditional discharge of Snooki’s drunken boardwalk conduct. 

The problem is that the hype was all about the autographs.  It’s bad enough that reality television has found gold in the gutter, and offers enticing stars like Snooki, whose talents range from drinking alcohol to fighting with others.  Shows like this are favored by those who spend their entire allowance to go see movies like Jackass 3D.  Imagine the wonderful lessons learned about both the legal system and the consequences of behavior.

Ironically, the community service performed by poor Snooki might well have served to teach a relatively decent lesson, that even trashy reality TV stars are expected to behave themselves appropriately and play well with others, upon pain of performing such mundane and banal tasks as cleaning up animal poop and working at the Zoo.  Instead, the media went for the sensational and misleading, turning what might have been a useful story into farce.

Regular people don’t get to sign autographs in satisfaction of their community service.  No, you aren’t Snooki, and three hours of autograph signing isn’t in the cards for you.  But then, it wasn’t in the cards for Snooki either.  At least not without some real community service for two days.  But why talk about that and ruin a really screwy story.

Rarely does one come away from a symposium with anything of use.  In the best of cases, you learn a theoretical construct that judges would laugh at if only you had the chance to make your case.  It seems that no one at symposia realize that you’ve got ten seconds to make your pitch before the judge blows you off, and the pitch being promoted at symposia usually takes north of an hour, the tolerance of a saint and the ability to stifle a laugh.

But how could I ignore this symposium, Exonerating the Innocent: Pre-Trial Innocence Procedures. With a catchy title like that, combined with the possibility of learning something of critical importance, it’s one that you can’t let slip.  Here’s the pitch:

This symposium will examine an entirely novel approach to substantially reducing the system failures that lead to wrongful convictions: the use of pre-trial innocence procedures and bureaus meant to limit the number of convictions of innocent people, especially the indigent, by allowing defendants to establish their innocence prior to or at trial. Leading scholars and practitioners will examine whether or how such procedures could spare innocent defendants from long prison terms in a system where establishing a person’s innocence following conviction is extremely difficult.

Not only am I guilty of having failed to use “pre-trial innocence procedures,” I don’t have a clue what they’re talking about.  Other than the generic use of pre-trial procedures, which I’ve always understood to apply to all defendants, who are by definition innocent since no jury has yet found them guilty, and which I use regularly and with some proficiency, there was clearly a gap in my knowledge of what is available. 

I check the law and came up empty.  I used by Google-fu and found nothing.  How is it possible that there are “pre-trial innocence procedures” about which I knew nothing and could find nothing.  This is huge.  This is a game-changer.  I was ashamed of myself for being wholly unaware of this, since I want to spare innocent defendants from long prison terms too.

Of course, this was something that was known by “leading scholars and practitioners,” but not me.  I was so jealous that I needed to see who knew what I didn’t.  The program consisted of three panels.  The first was entitled, “Theoretical and Empirical Considerations of Pre-Trial Procedures.” and Paul Cassell, my favorite ex-federal judge turned victims rights advocate, was on there.  But no practitioners, which makes a lot of sense since practitioners and anything called “theoretical” tend to result in small explosions.

The next panel is called, “Approaches and Alternatives to Pre-Trial Procedures,” and is moderated by Peter Neufeld of Innocence Project fame.  Now this sounded cool and interesting, since there’s certainly no magic in the statutory pre-trial procedures that gives rise to exoneration.  Except the panel consists entirely of academics, not a single practitioner in the bunch. 

The final panel is “Political and Practice Considerations: Statutes and Demonstration Projects,” which enjoys a bit of alliteration if not any obvious connection.  Moderated by a West Point colonel from the Military Academy’s Center for the Rule of Law, there are finally two practitioners to be found: Steven Banks, who is the Attorney-in-Charge (as in head administrator) of The Legal Aid Society and Mike Ware, Chief of the Special Fields Bureau of the Dallas County District Attorney’s Office, which include the conviction integrity division.

The scent emitted by the participants of this symposium smells like push for defense lawyers to spill their “innocence” case to the prosecution at the earliest possible opportunity and lay down, prostrate, before the awesome yet inherently trustworthy power of the government.  You see, there really isn’t any such thing as “innocence procedures,” aside from begging for the mercy and understanding of those who hold the power over the prosecution.

No doubt that the rare instance of DNA proof of exoneration may, when all the stars align, work out, except when it doesn’t.  The same can be said of secret videotapes.  Is it possible that the magic secret to exoneration is give it up to the prosecution and pray that they don’t use it to figure out some way to circumvent the proof so that they can whup the defendant’s butt at trial?

Maybe it will include a handout about why eyewitness identifications aren’t always accurate, or how false confessions happen, and contend that if we only teach prosecutors, they will embrace their failings.  After all, prosecutors only want to do justice.  Ask any scholar and they’ll tell you.

Neither scholars nor those politically inclined toward believing that only the provably innocent deserve to walk seem to consider this “approach” to be problematic.  In this theoretical construct, they concede what practitioners already know, that the burden is on the defendant to prove his innocence.  The old theory, innocent until proven guilty, has given way to the new theory propounded by scholars who are deeply concerned about “wrongful convictions,” meaning that defendants whose claim of innocence passes their muster not be convicted.  The rest of them?  Screw ’em.

The keynote speaker is New York Court of Appeals Judge Theodore Jones. who also co-chairs New York’s Justice Task Force. 

The task force will determine the causes of wrongful convictions and develop systemic remedies to make the state’s criminal justice system more effective. Importantly, the task force is permanent – and it will develop improvements in court procedures and rules, legislation, and training for attorneys, judges and police.

The task force was announced last May.  I can’t wait to find out how many innocent defendants have been saved thus far.

This symposium is scheduled to last from 8:15 a.m. to 5:30 p.m.  That’s a long time to hand out the telephone numbers for prosecutors and a demonstration of how to beg on bended knee.  At least you get 5 CLE credits for attending, though it appears they don’t serve lunch.

Examining a novel approach to reducing the incidence of wrongful convictions

We’ll see.  I want desperately to be wrong, completely, totally wrong, about what this symposium has to offer.  I want to learn how to save the innocent defendant, about a “novel approach to reducing” wrongful convictions.  I want to be better, more effective, at what I do.  Teach this old dog some new tricks and make me eat my words. 

Frisks are for kids.  A couple of cops in Minneapolis saw no point in awaiting the legal niceties, or perhaps enjoy their job a bit too much.  They decided to snap on the latex gloves and go for it.  What they didn’t know was that they were actually starring in a porno flick, as they were caught on video.  From the Star Tribune :

Recardo Meeks has the video.

It shows two Minneapolis officers doing a strip and body cavity search on a city street and is now a key piece of evidence in Meeks’ complaint and lawsuit against the city.

Police said he was stopped for speeding and swerving, and officers smelled burning marijuana in his car.

The video shows Meeks leaving his car and getting patted down and then handcuffed. It appears an officer looked inside Meeks’ car. A short time later, an officer pushed Meeks’ head down toward the trunk of the squad car and both officers pulled down Meeks’ pants and underpants. After searching the garments, an officer grabbed latex gloves from the squad’s trunk and removed tissue and a small amount of marijuana from Meeks’ buttocks.

So what if the law only allows a pat down when the cops have a reasonable suspicion that a person is armed.  So what if a strip search is unlawful.  And don’t even ask about search a “body cavity,” which is the polite way to describe anal rape.  If they did nothing, this bad dude would be free to walk, and that would make them look less than in control.  As rape victim advocates remind us, it’s all about control.

Under ordinary circumstances, this would never have happened.  By that I mean, Recardo Meeks would say it happened, but the cops would deny it and everybody would say that Meeks, a criminal, was lying, and the cops, Anderson and O’Connor, are heroes, with medals and commendations to prove it.  Why, as prosecutors love to argue, would the cops lie?

Unfortunately, video doesn’t lie either.

Meeks filed a complaint with the Civilian Review Authority, which referred it to the police department for discipline.  It appears that these two police officers will have a sternly worded letter reminding them of the department’s policy to not stick their fingers up people’s butts in their permanent file (but only for three years, when the statute of limitations for anal rape expires), alongside their medal of valor.

Meeks has sued for the violation of his buttocks.  This goes too far for Minneapolis.  The City denies their cops did anything unconstitutional.  The City offers a three-prong defense:

A new blog appeared and captured the attention of Mike at Crime & Federalism.  Jeff Gamso is on board.  It’s called Lawyers on Strike with the subtitle, “because the system is broken.”  It says it’s “an experiment – an effort not just to inform, comment or discuss but to act.”

The concept is set forth in its opening manifesto:

This one will attack the problem at its root:  judges.  Judges favor the government in criminal cases.  They favor insurance companies and banks – and the government again – in civil cases.  Put simply, they favor the more powerful litigants and their attorneys over the weaker litigants and their attorneys.  More simply yet, they are the ultimate apologists for the establishment and the status quo, precisely because their whole publicly perceived raison d’etre is the opposite.

So, what to do?  Personally, I’ve had enough complaining, especially when it comes from lawyers. We are players in the system; if it’s broken, it’s at least partly our fault.

I propose to field reports (anonymity protected) from criminal defense lawyers and other disfavored litigants’ attorneys from anywhere in the United States concerning outrageous judicial conduct – not the kind that makes it into the mainstream press, like personal or sexual misconduct, but the routine, everyday dishonest, biased decision making that hurts those attorneys and their clients, resulting in wrongful convictions or other forms of justice denied.

Then, based upon criteria that I may or may not divulge in the future, I will decide if any of those reports justify a boycott of the judge involved by other criminal defense and/or independent attorneys.

I’m not impressed.  Who is this person who will decide for others whether reports justify a boycott of a judge?  He calls himself “Atticus”. 

There is no pseudonym more painfully trite in criminal defense, as “Atticus” is the name commonly adopted by the self-righteous as the keeper of Justice. But the character, Atticus Finch, didn’t hide in the shadows.  He put his body between the enraged mob and his client, prepared to suffer for his beliefs.  Not this “Atticus,” who has set himself up as the arbiter of unworthy judges.  He proposes that others rely on his anonymous judgment, based on criteria that he “may or may not divulge,” to boycott judges.  Others should put themselves on the line, while he hides.

Mike likes the clarion call to action.

A few more blog posts ranting about the latest judicial opinion that gets the law wrong? Most people won’t even criticize a judge by name.

What would happen if people took radical action?

What would happen if people stopped paying their loans, as a giant Fuck You to Wall Street?

What would happen if lawyers refused to appear before prosecutors in robes?

If only one of us rebel, then we will lose everything.

If we all rebel, we will [win] everything.

Granted, our blog posts haven’t quite rocked the world, but those of us who have called out bad judges, called out bad decisions, shine as much light as we can muster on the problem.  Some do so from hiding, but some, like Mike, like me, use our own names.  To the extent a judge will be angered by what we say, we bear the consequences of our statement.  We don’t throw rocks from behind walls where no one can see us.

Gamso isn’t as ready as Mike to sign on.

And now there’s Lawyers on Strike.  A new blog, a new voice.  Urging more.

It’s a little difficult to see how it could work.  I don’t like Judge X so when my case is assigned to him I’ll refuse to litigate it?   I don’t know.

But I appreciate the chutzpah.  And the balls.  And maybe the blogger has an idea of how to do it.

I suspect Jeff is being more than a little kind by suggesting there is any chance it could work, I fail to see any chutzpah, any ball, involved in this endeavor.  None at all.  In fact, I see just the opposite, machismo wrapped in cowardice.  The internet is the greatest place ever invented to be tough as nails without bearing any risk at all.  Write something all he-man from behind a pseudonym, and people will think you brave and bold.  I call bullshit.

As for the idea itself, I’m unimpressed.  I suspect that the stories of judicial wrongs will primarily be the same ones that all bloggers get in their comments, and which I treat as spam.  Individuals complaining about how the system failed them, the judges hated them, they were denied their doooo-process.  Every losing defendant thinks the system is broken and corrupt.  Most are wrong.

Then there’s the concerted activity that Mike sees as the difference between the ineffectiveness of our individual voices and the revolution that could change everything.  Criminal defense lawyers are worse than feral cats, never agreeing about much of anything.  Some focus on being the most effective advocates possible for their clients.  Some cry and moan about the injustice in the world, eschewing competence and effectiveness in fits of self-indulgent emotionalism.  Most fall somewhere in between. 

They all see things differently, and rarely are they inclined to give up their beliefs to be part of the gang. Concerted activity has been tried, and failed, over and over again, even when the call for action came from a known and respected source.  It surely won’t happen because somebody who calls himself Atticus and hides in the shadows makes the call.

But even if it did, consider the efficacy of the concept.  Let’s assume that Atticus can somehow sway all lawyers to follow his lead, accept his choice of bad judge, and stand together.  If we, by concerted action, boycott a judge, the only person to suffer will be the defendant standing alone.  Our boycott won’t mean that cases magically disappear, or that judges are pulled off the bench because criminal defense lawyers won’t appear before them.  It means that we sacrifice defendants on the altar of our cause.

Do you think it’s worth it?  Terrific!  Then you serve the sentence on behalf of the human being you’re too happy to sacrifice.   What?  You don’t love it that much?  That’s what I thought.

Even if we could, by concerted action, have the impact of driving cases away from those we consider bad judges, the implications of doing so would be systemically disastrous.  If we can influence the bench this way, so too can the prosecution.  What would happen if the prosecution refuses to appear before judges who are, in their opinion, too favorable to the defense?  And get real about it, as the prosecution is invariably better capable of concerted action than the defense, as they hold the purse strings over their line.

I can well appreciate both Mike’s and Jeff’s desire to be more effective in creating positive change, and their openness to new ideas.  But shooting off half-cocked isn’t the solution, any more than encourage others with silly, ineffective ideas to announce that they’ve come up with the solution to all our problems.  It’s not easy to have a really good original idea.  Very few come along.  That’s not a reason to embrace the silly ones.

Will there ever be a revolution, an idea that changes everything?  I don’t know.  I tend to doubt it, but then that reflects only the limitations of my own ideas.  Maybe someone will come with something so ingenious, so effective, so viable, that it will bring about the change that Mike, Jeff and I want.  But I guarantee one thing: It won’t come from some anonymous “truth teller” cowering in the shadows while asking the rest of us to trust him and put our ass on the line.  Rebels don’t hide in the shadows.

Recently, the issue of non-unanimous verdicts was under discussion, with the question asked but not answered as to why Oregon and the military have chosen to accept a less than unanimous verdict as sufficient to convict in a criminal case.  In Apodaca v. Oregon (1972), the Supreme Court held otherwise for federal courts.

The point is quasi-clear that the seriousness of finding a person guilty of a crime demands unanimity (except when it doesn’t).  From its origins in the 17th Century, a jury was twelve men good and true, the word “good” meaning men of rank or valor.  Though this has evolved over time, it remains fundamental that we assume jurors to be honorable and diligent in the fulfillment of their duty.  Yet a simple majority remains insufficient to convict.

As I raise caselaw in the context of consideration of issues lately, it struck (again) me that so many decisions of our Supreme Court are 5 to 4, decided by the vote of one Kennedy person.  Granted, a jury finds facts while the Supremes hold law, but a jury decides the guilt of an individual while the Supreme decide the law of the land.  The former is important.  The latter is pervasive.  How many individuals get a vacation courtesy of the government because of the turn of one head on the Supremes?

Given that the Nine, comprising an entire branch of a tripartite government, hold such awesome power (and hold it for life), and that membership in this exclusive club presumes a certain amount of intelligence, knowledge and judgment, it struck me that the often seismic swings in the law resulting from the collective decision of the Nine, by a majority of a single vote, reduce The Law to an absurd abstraction.

When a decision is rendered by a majority of one, it means that four of these theoretically brilliant people have decided against the holding.  If they are sufficiently suited to the task, why then does their refusal to be persuaded to support this change in law count for nothing?

We require unanimity (except when we don’t) for a finding that one man is guilty, but are satisfied with a majority of one to hold one thousand men guilty of a crime by redefining the crime, or the use of evidence to prove the crime, or the method by which conviction is obtained, without a second thought.  There was a time, notably when Warren Earl Burger was Chief Justice, that the Supreme Court justices recognized that the changes to the law they were imposing on society demanded unanimity on the Court.  The changes, favoring civil rights, would have given rise to doubts of the validity and legitimacy of the Court’s decision if the Nine weren’t all behind it.  A majority of one would have undermined the decision, and perhaps ended the public’s willingness to accept the decisions of the Court as the law by which society would endure.

Not any more.  We’ve grown used to 5-4 decisions.  We’ve become inured to the split and are no longer particularly troubled by these wild swings based upon nothing more than one Kennedy’s person’s vote.  We accept them, parse them, cite them, apply them as if the Court spoke with a single voice. 

What we fail to do is recognize that four justices, those special brilliant few, have decided that the decision is wrong.  Wrong, wrong, wrong.  A foundational shift in the law is happening, and four of the guardians for life have declared that it should not happen. Crazy, no?

It’s not that there is some different split that offers a principled justification for reversal of an existing precedent, but one has to wonder whether 6 to 3, 7 to 2, maybe even a unanimous decision, would be a more reasoned basis to accept a fundamental change in the law of a nation.  It just doesn’t seem good enough that the stability of the law hinges on a single justice, no matter how brilliant or well-intended the vote may be.  The fact that four justice, co-equal to the four on the other side, are of the view that the holding should not be the law strikes me as a very good reason not to reverse precedent.  It’s not enough to fundamentally alter the rules of a nation because of a single swing vote.

And yet it is.  Even though they couldn’t convict a person of anything.

It was May, 2001, when congressional intern Chandra Levy disappeared and the rush to blame California Congressman Gary Condit was all over the papers.  Levy’s death is no longer on the front page, but as defendant Ingmar Guandique goes to trial for her murder, the prosecution still wants to get the win.  Badly enough, in fact, that they’ve been pulled some extraordinary shenanigans to obtain a confession.

From the Washington Post :

District law enforcement officers disguised themselves as a Latina woman and wrote letters to Ingmar Guandique while he was in a California prison, hoping Guandique would confess his involvement in the slaying of federal government intern Chandra Levy, defense attorneys revealed at a hearing Thursday in D.C. Superior Court.

“We don’t know if this action was hatched with the assistance of prosecutors or done by police alone,” [Santha] Sonenberg said. “Knowing [Guandique] had asserted his attorney rights and did not want to talk about it, is offensive.”

Using the name “Maria Lopez,” it appears that the police sent Guandique love notes.  What prisoner doesn’t enjoy love notes?  Lacking details, I envision scented paper, a pink pen and little hearts over the “i”s, the sort of thing that would make any prisoner’s heart leap with joy at the attention.  Nothing about the love notes suggested that it was written by a particularly muscular and hairy-knuckled hand. 

Nowhere amidst the hearts were the words, you have the right to remain silent.  No need for it, since he was already represented on the case and his rights had been invoked.  But there is no right to invoke against the love of a young woman.

Prosecutor Fernando Campoamor-Sanchez defended the letters and said the move was not “illegal, unethical or improper.”

He accused Sonenberg of providing “sound bites” to the six or so reporters in the courtroom. Campoamor-Sanchez said that the letters were permissible, but he did not say whether his office was involved in writing the letters.

The story fails to provide the rationale upon which the prosecution relies in support of its argument that it can circumvent the defendant’s 5th and 6th Amendment rights by pretending to be the hot and interested “Maria Lopez.”  Perhaps they are testing the shelf-life of Guandique’s invocation, per Maryland v. Shatzer, the arbitrary Supreme Court holding that it expires in 14 days.  Perhaps they are just true romantics, believing that love conquers all.  It doesn’t say.

Guandique’s lawyer, Santha Sonenberg, moved Judge Gerald Fisher to dismiss the first degree murder charge, which Fisher immediately denied, stating he would “review” the allegations to determine whether any action was warranted, but that the case was “going forward to trial.”  Despite the ruse, Guandique made no admissions to the nubile and willing “Lopez.”  No harm, no foul. 

And from the looks of things, no outrage by the judge nor shame by the prosecution.

It strains my somewhat fertile imagination to come up with a rationale that the prosecution believes would justify these actions.  Granted, I’m somewhat dogmatic about the use of a subterfuge to circumvent constitutional rights.  It’s a bad thing and they can’t do it, in my book.  Apparently, the prosecutor is reading from a different book. 

That Judge Fisher refused to toss the charge comes as no surprise.  Had the scam letters worked their magic, the appropriate sanction would have been suppression of the unlawfully obtained admission.  Since there was no admission, there is nothing to suppress.  But no judge is going to give a defendant a free murder because of a constitutional violation that failed.  Nor should he.

Yet that means that the prosecution has no incentive to not try to violate Guandique’s constitutional rights.  Get caught and the worst that happens is that you can’t use the unlawfully obtained evidence.  So what?  You didn’t have it in the first place, so losing it is meaningless.  Plus, you now know for sure that you’ve got the right guy (and it may just slip out into the media in case some potential juror is listening).  And if you don’t get caught, Bingo!

If we find it just a bit troubling that the police tried to reach out and touch Guandique in a particularly pleasant way, then there must be some remedy for what happened here.  Without a disincentive to give it a try, a penalty for the effort, if not the success, then there is no reason (internalized ethics aside) for prosecutors or cops to honor the constitutional rights for defendants. 

Don’t fret.  Judge Fisher is thinking about whether “any action is warranted.” 

Oral argument before the Supreme Court on Hank Skinner’s quest to get the Republic of Texas to do DNA testing left the justices twisted in a procedural morass.  As Adam Liptak tries to explain:

The justices focused instead on whether Mr. Skinner had located a path through a thicket of legal doctrines meant to limit postconviction challenges.

Last year, in District Attorney’s Office v. Osborne, No.08-6, the court ruled by a 5-to-4 vote that inmates have no freestanding right under the Constitution’s due process clause to test evidence that could prove their innocence in states without laws on DNA testing. The court and Congress have, moreover, severely limited habeas corpus challenges to convictions and sentences.

Mr. Skinner chose a third route, suing under a federal civil rights law known as Section 1983 and saying a Texas law that allows DNA testing in only some circumstances violated his rights.

Taken separately, rules develop for a reason, and make some sense in a way that suggests they solve one problem despite creating another.  At the Skinner argument, a whole bunch of problems came together.

That position required Mr. Skinner’s lawyer, Robert C. Owen, to maintain that his client’s goal, at least for now, was not to challenge his conviction or death sentence, as such challenges would have to be brought through a habeas petition, but simply to test the evidence.

Justice Samuel A. Alito Jr. was skeptical. “In the real world,” he said, “a prisoner who wants access to DNA evidence is interested in overturning his conviction.”

Justice Anthony M. Kennedy wondered whether the Supreme Court erred in staying Mr. Skinner’s execution in March, less than hour before he was to be put to death, in light of his position that he was not currently challenging his death sentence.

“You are telling us that your attack doesn’t go to the sentence,” Justice Kennedy told Mr. Owen. “I don’t see why we don’t just lift the stay, under your view of the case.”

The argument seems like something out of Alice in Wonderland, given that obviously the endgame is to test the DNA to show that Skinner is an innocent man and, therefore, shouldn’t be executed.  But if the truth is argued, then Skinner loses because you can’t use a 1983 action as a subterfuge to avoid the time constraints imposed on habeas corpus or the tactical decision of trial counsel to not have the DNA tested prior to trial. 

There are some sound arguments behind each of the procedural roadblocks.  Defendants don’t get a mulligan because trial tactics failed the first time around, or there would be no finality to convictions or consequence from tactical decisions.  Indeed, trials consist of thousands of such decisions, and every one of them could theoretically have altered the outcome if handled differently.  No conviction would ever be final if defendants could revisit every decision made by a lawyer, and we would be crushed under a deluge of second guessing that would paralyze the criminal justice system.

Then there is the one year limitation on filing a federal §2255, the old habeas corpus petition, to prevent habes from similarly crushing the system under a never-ending onslaught of challenges.  This was a triumph of procedure over substance that only a grocery clerk could love.

And ultimately, there is the holding that no free-standing federal due process right to test DNA to prove innocence.  This isn’t a procedural hurdle, but some good old judicial modesty, where it’s left to legislatures to create laws enabling access to DNA rather than providing defendants with an independent right under the due process clause, post-conviction, to test.  Of course, we don’t want courts legislating rights.

Put all of this together and you’ve got the Skinner case before the Supremes, where the clash of holdings exposes one incredibly troubling problem:  An innocent man may end up being executed for lack of a path to prove his innocence.

As lawyers, finding ways to slip-slide our way around procedural roadblocks and hurdles seems almost normal.  This is just awful, that we are so inured to playing the technical aspects of law that we fail to be able to state loudly and clearly what we’re trying to do.  Skinner’s lawyer, Robert Owen, is forced to essentially lie to the Court, grossly misstate the point of his effort, because if he told the truth, he would lose. 

Yet the justices leave him no choice.  Consider the statements by Alito and Kennedy, apparently undisturbed by the big question as they grasp the details close to their chest.  So what if an innocent man is executed, as long as you aren’t abusing the generosity of §1983 to get around the limitations of §2255?  These are two of the nine most powerful people in our tripartite government, and the potential execution of an innocent doesn’t seem to register.

As much as people may be have little sympathy for criminal defendants and favor the rules that make it difficult, if not impossible, to mount a serious post-conviction challenge, are they really so cavalier about the execution of someone who may be innocent?  Ask Cameron Todd Willingham. 

As soon as the news was out that the Suffolk County, New York, Legislature passed the new Animal Abuse Registry, it struck me as clear that we’re in for another wild ride.  Commentary since its passage is instructive, as it shows clearly how a bad idea gains support and momentum at the start, enough to push it headlong over the edge and onto the slippery slope.

At Above The Law, Elie Mystal, who ironically only days before opined that anti-bullying laws were bad as teacups needed to learn how to fend for themselves, went all jello over the animal abuse registry.

Parents don’t want their kids hanging out at the sex offender’s house next door, and they really shouldn’t want their kids hanging out with the neighbor who mistreats and harms defenseless animals as well. People who prey on weak animals will soon prey on weak people.

It’s an exciting time to be a fan of animal rights. Awareness is high, and hopefully it won’t be long before all animal abusers can expect to suffer truly severe criminal penalties for their depraved actions.

Elie, Harvard undergrad and law, is a fan of animal rights.  Granted, that takes it a step beyond being a lover of animals, though it’s unclear what rights he would accord iguanas (for example), but with his very well-regarded education, one would suspect he’s given some modicum of thought to his public assertions.  And he just adores this Animal Abuse Registry.

Except his reasons, well, ignore the vast disconnect between reality and perception.  Notice the part where he talks to “severe criminal penalties?”  I would have guessed that they taught a bit of criminal law at Harvard, not that they would likely have use for it but at least so they could chat thoughtfully at cocktail parties.  Apparently, I would be wrong.

Elie’s animal fanaticism lapsed into the simple-minded equation:  Animal abuse is wrong, therefore anything that causes misery to animal abusers is good.  And this is how bad law happens.

At Huffington Post, the big tent that provides insight to thought deep and shallow, took its turn explaining the Animal Abuse Registry.

The law was prompted by a number of animal abuse cases in recent months, including that of a Selden woman accused of forcing her children to watch her torture and kill kittens and dozens of dogs, then burying the pets in her backyard.

Horrible story.  Unfortunately, no mention of criminal prosecution and sanction, suggesting to the reader that but for this Animal Abuse Registry, this woman was in line for Pet Owner of the Year.  The post goes on to talk about this nefarious situation:

While some abuse is motivated purely by cruelty, Suffolk SPCA Chief Roy Gross said, some recent cases are linked to the poor economy.

For instance, an emaciated Doberman mix was recently found near death inside a foreclosed-on home, he said. And sometimes, pet rescuer Cathy Mulnard said, elderly people on fixed incomes must decide between eating, or feeding their pets.

“They don’t mean to be bad to the animal, but they get overwhelmed and don’t know how to ask for help. They may be innocent abusers,” said Mulnard, a founder and co-director of Second Chance Rescue, a Suffolk animal shelter that works closely with the SPCA.

Mulnard called the legislation “a godsend for the animals.”

Already, the sick animal abusers, the ones likely to become serial murderers according to the law’s supporters, give way to poor grandma, penniless and unable to care for her beloved pet.  What about them, you wonder?  Collateral damage in the war against animal abuse, just as the 22-year-old peeing against a tree is collateral damage in the war against sex offenders. Screw ’em, at least for now.

The comments to the HuffPo and ATL posts are most telling.  All the animal lovers are clapping their hands, praising the Lord, passing the buck.  By and large, it’s no more cognizable to them than it is to Elie that being consigned to this registry comes after prosecution, after conviction, after sentence.  These are the stages at which penalties are imposed, yet not even our Harvard law grad shows the slightest recognition that the registry comes after the punishment, a back end piling on after the criminal has paid his dues to society. 

What will they have to say when instead of Fluffy found starved to death, they find grandma, who couldn’t afford to buy herself catfood to eat because her last $50 went to pay for the Animal Abuse Registry?  Sure, there will be some hand-wringing about a law taken too far, a law enacted without thought of consequences, a law that is goes too far since it only applies after the sentence in a criminal case?

Wait.  Only after a criminal sentence?  You mean they were already sentenced for their crime?  You mean they served their sentence, paid their dues, and only afterward do they get this dumped on them, on top of everything else?  You mean grandma, who loves kitty cats, gets swept in with the woman who does crush videos?  But, but, but…

Too late.  You all loved this registry at the outset because you only saw Fluffy’s sad face.  Too bad you didn’t bother to think at the time.  And this is how we dig ourselves into holes from which we never seem able to emerge.